Deacon Keith Fournier: The Courage of the Catholic Bishops, Religious Liberty, Hobby Lobby and ENDA

Part of the effort to undermine the Hobby Lobby and Conestaga Wood case is being undertaken by the President of the United States with his multiplying misuse of executive orders. Part of it is taking place in the propagandized media affront against religious freedom. Once again, the Catholic Bishops are rising to the moment on both fronts.

The Catholic Bishops are doing an excellent job standing up for Religious liberty as a fundamental human right. One of my growing concerns is that many Catholics do not even read what they are saying. Sadly, in a propagandized media where sound bites substitute for serious reporting, the clarion defense put forth by the Catholic Bishops is often not properly quoted, if even mentioned. Instead, the media continues to disparage the Church with caricatures rooted in a growing anti-Catholic animus. Even more regrettably, some participants in the growing Catholic blogosphere, rather than defending the Catholic Bishops, are engaged in uncharitable internecine warfare with one another, while the dark cloud of anti-Christian persecution grows in this Nation.

WASHINGTON DC (Catholic Online) - On Monday, June 30, 2014, the United States Supreme Court issued its decision in what is now called the Hobby Lobby Case. Closely held corporations cannot be required to provide abortion inducing contraception coverage under the HHS Mandate to the Affordable Care Act (- a.k.a Obama-Care).

The Hobby Lobby and Conestoga Wood cases were brought under a Federal Act; the Religious Freedom Restoration Act  (RFRA) The law was passed in 1993 and has frequently been used whenever a legal issue concerning the Free Exercise Clause of the First Amendment to the Bill of Rights is at issue. Religious Liberty, a fundamental human right, recognized in the First Amendment to the Bill of Rights, provides the constitutional backdrop for the Religious Freedom Restoration Act (RFRA).

Two companies, owned by Christians, refused to provide abortion inducing contraceptives and devices under their health care plan. They refused based upon their sincerely held religious convictions. The owners had the courage to stand up against the Obama Administration. The Federal Government, through the HHS mandate to the Affordable Care Act (Obamacare) sought to compel the two businesses to do so - or face extreme penalties which could have driven them out of business.

The Religious Freedom Restoration Act (RFRA) presumes the primacy of the Free Exercise of Religion as a fundamental Constitutional Right. The First amendment begins with these words, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

For the government to prevail in this case they would have had to shown that the complained of burden upon free exercise was necessary because there is a compelling government interest which must be protected.

Next, they would have had to have shown that the burden on the Free Exercise of Religion which would result would have been the least restrictive means of accomplishing that claimed protection. Finally, the Religious Freedom Restoration Act (RFRA) required the application of a standard of review by the Supreme Court in reviewing this case. It is the highest standard of judicial review, called strict scrutiny. That is because Religious Freedom is constitutionally protected.

The Obama Administration failed. Religious Liberty prevailed. The Supreme Court correctly decided this important case. The majority of the United States Supreme Court held that the Religious Freedom Restoration Act (RFRA) requires the Federal Government to provide closely-held corporate objectors the same accommodation it provides nonprofit corporations and religious organizations.

In other words, the way that an association, business, ministry, or organization is legally structured DOES NOT necessarily affect the protections given to the entity and its owners under the Religious Freedom Restoration Act or the First Amendment.

The opponents of the claims of the owners of these two companies argued that the protections of the Religious Freedom Restoration Act did not apply to for profit corporations. Further, that they did not even have legal standing to assert these claims under the Federal Law.

They made that claim in the hopes that they could have stopped the case off before it was given serious consideration by the Supreme Court. If the Court were to have denied standing, the very right to sue, the case would have been over. That argument was repeatedly advanced in an increasingly propagandized media effort to detract from the real issues.

There has been a concerted effort to cast this serious constitutional case within a growing anti-corporate narrative in the United States of America. The absurdity of the claim is that nonprofit organizations are corporations as well. That includes ministries structured as corporations and given recognizition, under Section 501 c 3 of the Internal Revenue Code as exempt from taxation,

The only difference between a nonprofit and a for profit company is the Internal Revenue Service recognizes that their corporate mission is such that they should not be taxed on their profits in their operations as long as they are directed toward their nonprofit mission.

The attorneys for the two Christian companies properly asserted that the case should be analyzed under the Religious Freedom Restoration Act (RFRA). However, this was a major constitutional case. The Free Exercise Clause of the Bill of Rights is always implicated in RFRA cases.

I mention this fact to make a very important point. When the Bill of Rights was enacted there was no Internal Revenue Service. Some of the legal distinctions of our current approach to commerce, such as the structure of corporate law which distinguishes between a corporation being considered nonprofit or for profit, simply did not exist.

The First Amendment of the Bill of Rights to the United States Constitution stood for the existence of a Fundamental Right to Religious Freedom for all men and women.It protected them, in living their entire life - including engaging in commerce, and pursuing liberty and happiness - and made sure that they were not compelled to surrender their deeply held moral and religious beliefs outside of the walls of their chosen church or place of worship by the secular government.

The real issue before the U.S. Supreme Court in the Hobby Lobby and Conestoga Wood case was whether the federal government could compel these corporations to provide abortion inducing contraceptives under the ruse of providing health care to women. The Obama Administration failed. Religious Liberty prevailed.

The willful killing of human embryonic persons through inserted devices or ingested chemicals is embryocidal. It most certainly is not health care. Businesses run by those who respect the dignity of all human life from conception to natural death - and all in between - should not be compelled to participate in such an immoral act by a Federal Administration under the ruse of a heath care plan.

The family who owns Hobby Lobby, David and Barbara Green, are practicing evangelical Christians committed to protecting all human life. They refused to provide the chemical poison or the instruments which can kill in the name of health care. They know that medical science confirms what their faith and conscience affirmed, human life begins at conception. The contraceptive devices and abortion inducing forms of contraception they refused to provide under their employee health care plan can kill embryonic human persons.

That is why the Hobby Lobby and Conestoga Wood case was also a Pro-Life Case. Because the owners are Christians, they will not be complicit in the taking of human life, at any age or stage of life. It is always and everywhere immoral to take innocent human life.

As a Catholic Christian, I stood in complete solidarity with them and wrote numerous times asking fellow Catholics and other Christians to do the same. The Catholic Church is crystal clear on this matter. In fact, in 2008 her teaching magisterium offered clear words reaffirming the dignity of the embryonic human person.

The previous year, in a direct response to a specific question on the matter, the Congregation for the Doctrine of the Faith gave explicit instructions Here is one: "What Respect is due to the human embryo, taking into account his nature and identity?" Here is the answer given by the Magisterium: "The human being must be respected - as a person - from the very first instant of his (her) existence."

Not only is respecting and protecting human embryonic life a matter of a deeply held religious conviction,  Catholic Christians go further. We insist that this prohibition is binding on all men and women through the Natural Moral Law which can be known through the exercise of reason. That is because the other Right at issue, in addition to the Right to Religious Freedom, is the fundamental Right to Life of the Human Embryonic person. That Right is denied whenever they are intentionally killed.

Pope Emeritus Benedict told the United Nations in 2008:

"Human rights, in particular the right to life of every human being "are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights".

In a 2008 Instruction the Catholic Church also noted that this position of defending the Right to Life of the embryonic human person is a part of her constant and consistent Social Doctrine and concern for all of the poor:
 
"Just as a century ago it was the working classes which were oppressed in their fundamental rights, and the Church courageously came to their defense by proclaiming the sacrosanct rights of the worker as person, so now, when another category of persons is being oppressed in the fundamental right to life, the Church feels in duty bound to speak out with the same courage on behalf of those who have no voice.

"Hers is always the evangelical cry in defense of the world's poor, those who are threatened and despised and whose human rights are violated. In virtue of the Church's doctrinal and pastoral mission, the Congregation for the Doctrine of the Faith has felt obliged to reiterate both the dignity and the fundamental and inalienable rights of every human being, including those in the initial stages of their existence, and to state explicitly the need for protection and respect which this dignity requires of everyone."

I use such quotes for the express purpose of reaching out to any ill informed, poorly catechized, morally inconsistent, self proclaimed Catholics in political office and public service reading this article. Also, I want to appeal to fellow Catholics in the propagandized media culture who choose to deny the truth as taught by their own Church.

No Catholic should have publicly defended the Obama Administration position on this Supreme Court case.The Hobby Lobby and Conestoga Wood case was about whether the federal government can persecute Christians engaged in commerce because they live their faith in a morally coherent manner and refuse to participate in the taking of human lives. The U.S. Supreme Court answered the question - No!

Now, that brings me to the recent unilateral act of the Obama Administration of enacting a version of ENDA (The Employment and Non-Discrimination Act) by Executive order. A version which removed any religious liberty protections.

The Catholic Bishops issued a well worded and clear statement in opposition to this action which should be read by every Catholic, indeed every sincere Christian of any Church or community, or member of any religious community. In fact, it should be read by anyone who is concerned about the erosion of religious liberty in the United States.

The statement is entitled  USCCB Chairmen Respond to 'Unprecedented and Extreme' Executive Order and can be read here. Here is an excerpt:

"In the name of forbidding discrimination, this order implements discrimination. With the stroke of a pen, it lends the economic power of the federal government to a deeply flawed understanding of human sexuality, to which faithful Catholics and many other people of faith will not assent. As a result, the order will exclude federal contractors precisely on the basis of their religious beliefs." 

"More specifically, the Church strongly opposes both unjust discrimination against those who experience a homosexual inclination and sexual conduct outside of marriage, which is the union of one man and one woman. But the executive order, as it regards federal government contractors, ignores the inclination/conduct distinction in the undefined term "sexual orientation." As a result, even contractors that disregard sexual inclination in employment face the possibility of exclusion from federal contracting if their employment policies or practices reflect religious or moral objections to extramarital sexual conduct."

"The executive order prohibits "gender identity" discrimination, a prohibition that is previously unknown at the federal level, and that is predicated on the false idea that "gender" is nothing more than a social construct or psychological reality that can be chosen at variance from one's biological sex. This is a problem not only of principle but of practice, as it will jeopardize the privacy and associational rights of both federal contractor employees and federal employees. For example, a biological male employee may be allowed to use the women's restroom or locker room provided by the employer because the male employee identifies as a female."

The Catholic Bishops are doing an excellent job standing up for Religious liberty as a fundamental human right. One of my growing concerns is that many Catholics do not even read what they are saying.

Sadly, in a propagandized media where sound bites substitute for serious reporting, the clarion defense put forth by the Catholic Bishops is often not properly quoted, if even mentioned. Instead, the media continues to disparage the Church with caricatures rooted in a growing anti-Catholic animus.

Even more regrettably, some participants in the growing Catholic blogosphere, rather than defending the Catholic Bishops, are engaged in uncharitable internecine warfare with one another, while the dark cloud of anti-Christian persecution grows in this Nation.

Part of the effort to undermine the Hobby Lobby and Conestaga Wood case is being undertaken by the President of the United States with his multiplying misuse of executive orders. Part of it is taking place in the propagandized media affront against religious freedom.

Once again, the Catholic Bishops are rising to the moment on both fronts. They are taking on the challenge. That is why I now offer below, in its totality, a well written response to media opposition as my conclusion. It can be found on the Blog of the Catholic Bishops here.
They are doing what they can do. Now, we must do the same.

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Hobby Lobby and ENDA

By Archbishop Salvatore J. Cordileone, Archbishop William Lori, Archbishop Thomas Wenski and Bishop Richard J. Malone
 
The Washington Post reported July 8 that the American Civil Liberties Union and other advocacy groups were no longer supporting the Employment Non-Discrimination Act (ENDA). The reason, said the executive director of one of the lead organizations: the Hobby Lobby decision opens the door for private companies to determine that "LGBT people are not equal.and fire them."

But the Hobby Lobby decision does no such thing. The decision by the U.S. Supreme Court was an application of the Religious Freedom Restoration Act (RFRA), which requires that, if the federal government wants to impose a "substantial burden" on the religious exercise of its citizens, it must prove that the burden serves a "compelling government interest" and does so by the means "least restrictive" of religious exercise.

The decision was the Court's recognition that in the case of the HHS contraceptive mandate the government failed to use the "least restrictive means" of providing coverage for certain contraceptives. The Court deliberately said nothing about whether the government had a "compelling interest" in requiring that coverage. In any event, the current debate about ENDA does not focus on its interplay with RFRA, but instead on whether ENDA itself should have any exemption for religious employers - as all prior versions have - and if so, how broad it should be.

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So what is really the matter with ENDA according to these groups?

They argue that ENDA in its current form would leave religious employers free to "discriminate" based on their religious convictions. They argue that religious people cannot "impose" their morality on others. This ignores the fact that these advocates themselves seek to impose their morality on religious people and runs directly counter to the religious diversity that modern societies aspire to.

As Pope Francis wrote: "A healthy pluralism.does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual's conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism" (Evangelii Gaudium no. 255).

To dismiss concerns about religious freedom in a misguided attempt to address unjust discrimination in the workplace is not to advance justice and tolerance. Instead, it stands as an affront to basic human rights and the importance of religion in society.

The U.S. legacy of religious freedom has enabled the Catholic Church and other faith communities to exercise their religious and moral convictions freely and thus contribute to the good of all in society. No good can come from removing this witness from our social life.

This also makes a July 8 letter to President Obama about a proposed ENDA executive order rather remarkable: it is from religious leaders who argue against religious freedom protection in ENDA. One would expect these leaders to defend the rights of all people - even those who may disagree with them - to act according to deeply-held religious beliefs and moral convictions about the dignity of the human person and the purpose of human sexuality. Instead, these faith leaders go the opposite direction in the name of "anti-discrimination."

Indeed, discrimination is already happening to those who advocate for religious liberty protections. Just after the president of evangelical Gordon College signed a coalition letter asking President Obama to include such protections in a proposed ENDA executive order, the college became the subject of review by its higher education accrediting agency.

Unjust discrimination against any one - whether that person experiences same-sex attraction or is of a particular religion - harms us all. But ENDA is simply not a good solution to these problems and, as the Bishops explained last November 7, it should be opposed.

Instead of protecting persons, ENDA uses the force of the law to coerce everyone to accept a deeply problematic understanding of human sexuality and sexual behavior and to condone such behavior. The current proposed ENDA legislation is not about protecting persons, but behavior. Churches, businesses and individuals should not be punished in any way for living by their religious and moral convictions concerning sexual activity.

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Eliminating truly unjust discrimination - based on personal characteristics, not sexual behavior - and protecting religious freedom are goals that we all should share. The current political climate makes it very difficult to maintain a reasonable dialogue on these contentious issues, but we must keep trying.

Lobbying for coercive laws that violate freedom will not promote justice in the workplace. Nor will it advance the common good to seek to silence debate about sexual morality. We, like all Americans, wish there was an easy way forward. There is not. But there is an honest one. And it starts with the unflinching commitment to the inherent dignity of every human person, and to the "healthy pluralism" we all wish to share.

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Archbishop Salvatore J. Cordileone of San Francisco chairs the U.S. bishops' Subcommittee for the Promotion and Defense of Marriage, Archbishop William Lori of Baltimore chairs the bishops' Ad Hoc Committee for Religious Liberty, Archbishop Thomas Wenski of Miami chairs the bishops' Committee on Domestic Justice and Human Development and Bishop Richard J. Malone chairs the bishops' Committee on Laity, Marriage, Family Life and Youth.

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